1

This application for review is dismissed and the decision of the responsible authority to include condition 3 in planning permit TPA/31492 issued on 26 May 2004 allowing subdivision of the land, is affirmed.

2

I direct, pursuant to section 85(1)(e) of the Planning and Environment Act 1987 that the said permit must contain the said condition 3 as it appeared in the permit when issued.

Mr C Townshend, barrister, appeared on the instructions of the firm Deacons

Mr M Wright QC, barrister, appeared with Mr G Peake, barrister, on the instructions of Maddocks solicitors

Mr Wright and Mr Townshend presented written and oral submissions. Various plans photographs and other documents were tendered. The submissions and evidence in documentary form have been retained on the file of the Tribunal.

Application under section 80 of the Planning and Environment Act 1987 (PE Act) for review of a condition in a permit.

Condition 3 on planning permit TPA/31492 issued 26 May 2004.

1. The condition is invalid having regard to Clause 52.01 of the Planning Scheme.

2. The condition is unreasonable having regard to the type of subdivision proposed and the effect on demand for public open space in the area.

1

This case concerns a substantial but irregularly shaped piece of land with an area of just over 1 hectare located on the north eastern corner of the intersection of Forster Road with Ricketts Road, and having a frontage of a little over 85 metres to the northern side of Ricketts Road.

2

On this land there is a modern four storey office development constituted by 2 four storey towers surrounded with landscaping and car parking in the open air, including a plaza area with some landscaping and decorative features at ground level between the towers.

3

The land falls from south to north with a cross fall from east to west. When I say that the plaza area between the towers is at ground level, I mean that ground level when viewed from the south or Ricketts Road side. Viewed from that direction the development has the appearance of two quite separate and distinct buildings.

4

As I have said, the land falls to the rear. By going around the building, and particularly upon viewing it from its northern, or rear, side this fall can be appreciated. From this lower ground level there is a vehicle entry located between the towers giving access to a car park, at that level, that extends under each of the towers, and under the plaza area between the towers. Mr Wright QC,who appeared with Mr Peake for the responsible authority, said that this was to be described as an undercoft car park, rather than a basement car park, because it was substantially under the higher portions of the development, but not below ground level. Nevertheless, there will be some excavation on the southern and eastern side to provide a flat floor for this car park area. It is possible to look into the car park areas under the towers and in between them through metal grills. Over the portion of the car park located between the towers the area is "roofed" by the plaza area or a structure supporting the plaza area.

5

The development has been carried out pursuant to a permit 30410 issued 25 June 2003 allowing:

Use and development of two four-storey buildings, café and associated car parking including basement car parking.

6

While development work was proceeding pursuant to the abovementioned permit an application was made for a permit for the subdivision. In fact permit TPA31492 issued 26 May 2004 allows the subdivision in accordance with plans to be improved.

7

The condition in dispute is condition 3 on that permit which reads:

3. The applicant or owner pursuant to Clause 52.01 of the Monash Planning Scheme must pay to the Council a sum equivalent to 5 per cent of the site value of all the land in the subdivision being a contribution for Public Open Space. This payment must be made before a statement of compliance is issued.

8

This case was initially heard by another member of the Tribunal on 27 August 2004. A written determination was given dated 30 September 2004 with a medium neutral citation [2004] VCAT 1902. In that case it was decided that the subdivision was exempt from the need to make a public open space contribution on the basis that it comes within an exemption in clause 52.01 of the planning scheme. The relevant exemption reads:

Class 2: The subdivision of a commercial or industrial building provided each lot contains part of the building.

9

This exemption was interpreted as meaning that the exemption implied whether there were "a building" or in one than one building. That was on the basis that the singular includes the plural and vise versa unless the contrary intention appears in accordance with section 37 of the Interpretation of Legislation Act 1984. It had been held by the Full Court of the Supreme Court of Victoria that a contrary intention does appear in relation to this exemption provision - see City of Doncaster and Templestowe v Doncaster Pty Ltd (Trading as Billabong Group of Hotels) (1991) 8 AATR 81. However, the Tribunal sought to distinguish that case.

10

An appeal against the Tribunal decision by the responsible authority to the Supreme Court in Monash City Council v Callaghan George Associates Pty Ltd (heard together with Monash City Council v Pellicano Builders Pty Ltd [2005] VSC 321) was successful. The Supreme Court held that, although some distinguishing features might be discerned, nevertheless the view taken in the Billabong case (that the singular did not, in this instance, extend to include the plural) was good law and a proper interpretation of the exemption provisions. The Supreme Court therefore held that the applicability of the exemption, in the present case, depends on a determination of a question of fact as to whether the development is one building, or two. If the development, including both towers, is one building, then the exemption is good, and there is no obligation to make a public open space contribution. If, on the other hand, the development amounts to two buildings, then the exemption does not apply and there is an obligation to make a public open space contribution.

11

The Supreme Court therefore remitted the case back to the Tribunal for a determination on that question of fact. The case therefore came to me pursuant to that remitting order.

12

Osborn J, who heard the matter in the Supreme Court, provided (at paragraph 40 of his judgement) this cautionary note:

I propose to remit the mater for further consideration in accordance with law. I would only observe for the assistance of the Tribunal that in my view the decision of Morris J in Melbourne City Council & Ors v Becton Corporation Pty & Ors [2003] VCAT 1077 is of no real assistance in the present case. His Honour's decision was relevantly directed to the construction of a particular planning permit condition and not to the statutory framework here in issue.

The amount of contribution, if any, is not in issue

13

Before me it was common ground that the single issue to be determined is the question of fact as to whether the development amounts to one building or two. If it is two then the contribution is required pursuant to condition 3 of the permit and the contribution must be 5% of the site value of all the land in the subdivision. There is no question, as might arise under the public open space requirement provisions of section 18 of the Subdivision Act 1988 as to the amount of contribution. The amount under that section is not more than 5% of the site value. However, that is superseded, in this case, by clause 52.01 of the planning scheme and the schedule thereto. They provide that, where the type of subdivision is other than for dwellings the amount of contribution for public open space is fixed at 5% of the site value (neither more nor less).

14

After hearing the submissions of the parties, and considering the evidence produced, I announced my decision on the question of fact in contention, and gave oral reasons. The parties had the opportunity to note down the reasons as I gave, and they were recorded. In the circumstances I will not attempt to recapitulate all that was said. I will content myself with a summary.

15

Mr Wright had contended that the development is of two dwellings, and had originally been conceived, designed and built as two buildings, not one. In this connection he referred to a number of documents on behalf of the applicant in relation to the original development permit which referred to the development, in numerous places, as being for two buildings or both buildings or otherwise referring to the proposed development as buildings in the plural. These references included correspondence, the application for the development and the development permit itself. There were other bits and pieces

16

He referred to these as "underscoring" in his argument. I think that is a fair expression to use. All these points support his basic argument, and to that extent strengthen his case a bit. I do not regard them, individually or collectively, as decisive.

17

I have a good appreciation of the nature of the development concerned. I have this, in the first place, because of a thorough inspection of it. This has been supplemented by reference to plans and photographs produced at the hearing, although the photographs do not really take me beyond my inspection which enabled me to examine the development in its three dimensional built form on site and in detail. This included all the views in the photograph (effectively all of them, although some photographs were taken from further away than I was in the course of my inspection). I also inspected various plans and sketches produced in the course of the hearing.

18

There is some scope for argument that this development might amount to one building rather than two in as much as the two towers are connected to some degree. It is possible to descend one tower into its car park area and then cross into the car park area under the other tower, and then ascend the other tower without going into the unroofed out of doors. In other words, the two towers are linked by the under croft car park area at rear lower ground level. The car park is integrated with a single entrance from the rear, unlike the original application plan which had a separate vehicle entry for the western building, and where the car park under the western building was physically separated from the rest of the car park area.

19

Mr Townshend, for the applicant company, argued that this change from a separate car park to an integrated one made all the difference so that what has been built is, according to him, is one building whereas the application plans disclosed two.

20

I consider this to give an exaggerated importance to the separation depicted in the application plans and the integration of a car park in the approved endorsed plans which reflect the actual construction.

21

Some reference was made to the comparison, often referred to in planning cases, mentioned in the well known planning case of Shire of Perth v O'Keefe [1964] HCA 37; (1964) 110 CLR 529. In that case there was a discussion of the situation that can often enough arise in relation to questions of fact where there is a continuum between a situation that is very clearly one at the end of a spectrum and where another instance might be clearly at the other end, but where, in the middle, there can be a hazey and uncertain area where honest opinions might differ as to whether a particular case falls on one side, or the other of a distinction.

22

In this case, by virtue of the degree of connection relied upon by Mr Townshend, there is scope for argument that this is one building. Nevertheless, even if it can be said that to some extent the case enters the fuzzy zone, I am satisfied, indeed clear in my satisfaction, that this is two buildings, and not one.

23

Building is an ordinary English expression that must be applied here as a question of fact. There are statutory definitions of building, both in the Planning and Environment Act and in the Subdivision Act, but they are inclusive definitions making it clear that certain otherwise doubtful items are to be regarded as buildings. It still leaves the word building with its ordinary English meaning.

24

Not only that, but the distinction between one building and two, or between a building and more than one, is also a question of fact involving and applying the ordinary English meaning of words and expressions. This is not a technical or professional matter where special language applies.

25

Clearly, from most points of view, this development would be regarded as two buildings in ordinary English. The aspect that makes scope for an argument by Mr Townshend is the view from the rear of the single vehicle entry, under the plaza and into the integrated car park area. Does this degree of connection mean that there is, in fact, only one building, or does it mean that there are two buildings that are connected?

26

As stated in my oral reasons, I am satisfied that there are, in fact, two buildings that are connected, and where the connection is insufficient to support the conclusion that they are so connected as to constitute one building. In the course of debate during the hearing, and in giving my oral reasons, I made reference to various comparisons that I found helpful in assessing the degree of connection and, conversely, the degree of separation; and also, whether these should be regarded correctly as two buildings rather than one. Mr Townshend was reluctant to have me explore these comparisons because he said they were not relevant or insufficiently relevant to be helpful. It may be that they were not too helpful to the case he was putting forward but I did find them helpful. Nevertheless, I do not think it necessary to recapitulate them all here. They included comparisons with such structures as the modest "sky bridges" first floor level in parts of Sydney, the "sky bridge" across Londsdale Street between the Myer building and Melbourne Central, the subterranean link between the Bourke Street store and the Lonsdale Street store of Myer Emporium where it passes under Little Bourke Street, the connected but separate portions of Owen Dixon Chambers now constituted by Owen Dixon Chambers East and Owen Dixon Chambers West and so on.

27

Looking at the case at its strongest, from the point of view of the applicant company (and in particular from the locality of the rear vehicle entrance), I notice that these two towers are not structurally connected in the sense that they depend upon each other for their structural integrity. They are supported on columns, each with their own footings and foundations. They may, to some extent, support the roofing plaza but I consider that the structural integrity of each tower is separate from the other, and indeed from the connecting plaza.

28

The ability to walk from one to the other without going outdoors is a relevant consideration, but not decisive. Neither is the circumstance that each were designed as part of an integrated development by one architect and developed as an integrated single project.

29

My conclusion, for the reasons given at the hearing, is that in this instance, this particular development amounts to two dwellings that are connected to a degree, not two towers that are so connected as to warrant regarding them as one building.

30

Accordingly, the outcome of this case is that the application for review is dismissed and the decision of the responsible authority to include condition 3 in the subdivision permit is affirmed.